Tapa'amae v R [2021] SBCA 12; SICOA-CRAC 3 of 2020 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Tapa’amae v R
Citation:
Decision date:	1 February 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Maina J)
Court File Number(s):	03 of 2020
Parties:	Lawrence Tapa’amae v Regina
Hearing date(s):	Paper hearing October 2020 sitting
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Ifuto’o B for Appellant Suifa’asia for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Penal Code Section 199
Cases cited:	Popoe v R [2015] SBCA 20
ExTempore/Reserved:	Resaved
Allowed/Dismissed:	Dismissed
Pages:	1-4

JUDGMENT OF THE COURT

1. The appellant, Lawrence Tapa’amae, with leave appeals against a sentence of imprisonment imposed on 26^th September 2019 for the offence of manslaughter country to section 199 of the Penal Code. He was sentenced to a term of imprisonment for six years. The grounds of appeal are that the sentencing judge set too high a starting point and that as a result the sentence was manifestly excessive.
2. The appellant pleaded guilty to manslaughter which took place on the 4th of August 2016 at Pipisu Wharf, West Are’Are Malaita. The appellant disembarked MV Victoria when it docked at the wharf. The wharf at the time was busy. The deceased was one of the people congregating at the wharf. The behaviour of both men was affected by the consumption of alcohol.
3. The appellant was talking to his cousin brother, the deceased, when his cousin brother advanced towards him and attempted to punch him. Although the punch was unsuccessful the appellant responded by immediately pushing his cousin brother over the edge of the wharf. The cousin brother fell over the edge of the wharf and into the sea. There was no attempt at a rescue. As a result of his fall into the sea the cousin brother met his death.
4. These are the simple facts as agreed and as noted by the learned sentencing judge. In his sentencing remarks the judge took into account all of these factors and went on to determine a head sentence of seven years. He did that taking into account a decision of this Court in Popoe v R [2015] SBCA 20 which he preferred to follow rather than other decision which he was referred to by counsel from the High Court.
5. The sentencing judge set out the important, relevant parts of our judgment in Popoe where this Court set a starting point of seven years imprisonment for an offence of manslaughter where the appellant had sat on the shoulder of his victim causing death. Whilst the majority, if not all, of the authorities quoted from the High Court indicated a lesser starting point, it is understandable and, indeed, correct, to follow a precedent, when available, from a higher court, in this instance the Court of Appeal. It is for the Court of Appeal, the highest court within the structures of the Solomon Islands which is tasked with setting precedent and which the High Court is tasked with following.
6. In fixing the actual terms of imprisonment, the sentencing judge took into account all of the relevant factors, as is evidenced by the fact that there is no complaint on this appeal about that.
7. There is some suggestion that sufficient emphasis was lacking when it came to dealing with the question of delay. This case was not heard as quickly as it might have been and there was a delay, unexplained, in the filing of an indictment after committal. This, sadly, is all too common and should be rectified but when it does affect the speedy disposition of an offence it may be taken into account with other matters at the time of sentencing.
8. In his remarks, the judge noted the aggression beginning with the deceased, the lack of premeditation and the lack of a weapon and discounted the head sentence accordingly. We would remind the sentencing judge that the head sentence he selected, following the Court of Appeal decision, already took into account the lack of a weapon. Because of that, he double discounted that factor and this may well amount to an error. It can easily be rectified, as that same element of discount can be attributed properly to delay, as opposed to the lack of a weapon.
9. There is nothing, in our view, wrong in principle with the sentencing remarks or decision. Adopting, as he did, the head sentence from a Court of Appeal decision was not only correct but appropriate. There is no legitimate criticism that can be made of that, nor is there any legitimate criticism of the resulting sentence.
10. The appeal against sentence is dismissed and the sentence imposed in the High Court confirmed.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member